RAMNARAIN BHUJBALSINGH Vs. PURUSHOTTAM POORNASHANKER

JUDGEMENT

(1.) This order shall also govern the disposal of Misc. Civil Appeal No. 68 of 1980- (Ranchhod and Ors. Vs. Purshottam and Ors) , as both the appeals arise out of identical facts and raise similar questions of law.

(2.) The defendant-appellant started proceedings under Sec. 21 of the Madhyn Bharat Abolition of Jagirs Act. Samvat 2008 (Act No. 28 of 1951) -hereinafter referred to as the Jagir Abolition Act) for acquiring rights of a Pakka tenant in his holding before the Naib-Tahsildar, Dhar. Their claim for acquisition of Pakka tenancy rights was resisted by the plaintiff-respondent Purushottam and his brothers (respondent No. 2-Gopalrao, respondent No. 3-Dhivnarain and Ramchandra. predecessor-in-title of respondents 4 to 8). on the ground that Pakka tenancy rights cannot be acquired by the defendant-appellants-herein because on family arrangement the land in dispute had been allotted to the share of Purushottam alone, that the defendant-appellants were not sub-tenant in possession of the land in dispute, that Purushottam being a person without arm is a disabled person within the contemplation of Sec. 74 of the Madhya Bharat Land Revenue and Tenancy Act, Samvat 2007 (Act No. 66 of 1950)-hereinafter referred to as 5 the Tenancy Act). After recording evidence, by order dated 29-10-1959 the Naib-Tahsildar allowed the application submitted by the defendant-appellant Aggrieved by this order an appeal was preferred by the respondent Nos 1 to 3 and Ramchandrarao before the Collector Dhar, which has been dismissed. The revision preferred by Purshottam and others before the Board of Revenue was also rejected. Thus, the order of acquisition of Pakka tenancy rights passed in favour of the defendant-appellants attained finality. Thereafter the suit giving rise to this appeal has been brought by Purushottam, plaintiff-respondent No. 1-herein in the Court of the Civil Judge, Class II for declaration of title and restoration of possession on the grounds as detailed in paragraphs 1 and 2 of the plaint, which shortly are put as under; (1) that the suit land was service holding, (b) that the defendant-appellants were not sub-tenants; (c) that the Khasra entry recording them as sub-tenants was made by the Patwari collusively and fraudulently : that on a family arrangement dated 21-2-1951 the land in dispute was allotted to the plaintiff alone and that his other brothers had relinquished their shares in the suit land in his favour; that Purushottam was a disabled person within the contemplation of Sec. 74 of the Tenancy Act. Accordingly, no order of conferral of Pakka tenancy rights could be passed under Sec. 21 of the Jagir Ablition Act in favour of the defendant-appellants.

(3.) The claim of the plaintiff-respondent No. 1 was resisted by the defendant-appellants inter alia on the ground that the Civil Court basin jurisdiction to entertain the suit in view of the bar enacted by S, 34 of the Jagir Abolition Act.